Famous-Barr Co.

In the Matter Of MAY DEPARTMENT STORES COMPANY,-A CORPORATION, D/B/A FAMOUS-BARR - COMPANY and ELEVATOR OPERATORS AND STARTERS, LOCAL 50E, AFFILIATED WITH BUILDING SERVICE EM- PLOYEES INTERNATIONAL UNION, AFL - Case No. 14-C-1067.-Decided August 19, 1946 Mr. Harry G. Carlson, for the Board. Messrs.- Milton H. Tucker and Robert T. Burch, of St. Louis,-Mo., for the respondent. I - Mr. Daniel D. Carmen, by Mr. Lester Asher, of Chicago, 11L, and Messrs. Tini Dwyer, Gerald J. Lucas, and J. T. Latham, of St. Louis, Mo., for the Union. Miss Grace McEldowney, of counsel to the Board. DECISION AND ORDER On February 13, 1946, Trial Examiner Sidney L. Feiler isstied his Intermediate Report in the above-entitled proceeding,'. finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and-take certain affirmative action, as set-forth in the copy of the- Intermediate Report attached hereto. Thereafter, the respondent and the Union filed exceptions 'to the Intermediate Report and supporting briefs, and the respondent filed a reply brief. Upon request of the respondent, and pursuant to notice, the Board held a hearing for the purpose of oral argument at Washington, D. C., on July 11, 1946. The respondent and the Union were represented by counsel and partic- ipated in the argument. The Board, has considered the rulings made by the Trial Examiner at the hearing and finds-that no `prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions 'and briefs filed by the parties, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the ex- ceptions noted below. 1 Hearing before the Trial Examiner was held on January 7, 8, and 9, 1946 In the Intermediate Report, the date of said hearing is erroneously given as 1945 70 N. L. R B, No. 11. 94 MAY DEPARTMENT STORES COMPANY 95 1. We agree with the Trial Examiner that the respondent has en- gaged in unfair labor practices within the meaning of Section 8 (1) of the Act. In so finding, however, we rely only upon the conduct of Supervisor Winfield in making anti-union statements to Marie Lee and to other employees and in threatening Lee with discharge for her union activities, and upon the respondent's discriminatory discharge of Lee. 2. The Trial Examiner has found that on June 26 and 27, 1945, Lee, while shopping in the respondent's store during her vacation, was kept under surveillance by other employees with the knowledge and assistance of management and because of her union activities, and that by such surveillance the respondent violated Section 8 (1). of the Act. We do not agree. We find no convincing evidence that the respondent knew of, or acquiesced in, the conduct of the employees who purportedly engaged in such surveillance. Moreover, the record shows that the respondent had a rule against "soliciting for any pur- pose . .. without written permission from the Superintendent." We have previously held that such a rule is not violative of the Act except insofar as it prohibits union solicitation off the selling floor during non-working ho1irs.2 Assuming that the respondent knew *of, or assisted in, the surveillance of Lee, it does not appear that it was there- by doing more than attempting to enforce this rule. In the absence of any substantial evidence thpt the respondent was responsible for the surveillance of Lee, or that it was thereby attempting to prevent solicitation on behalf of the Union while permitting it for other pur- poses, we do not find that the aforesaid surveillance constituted a violation of Section 8 (1) of the Act. 3. We do not agree with the Trial Examiner's finding that the respondent's conduct in questioning its employees, several days after Lee's discharge, was violative of Section 8 (1) of the Act. We have previously held that an employer is privileged to interview employees for the purpose of discovering facts within the limits of the issues raised by a complaint, where the employer, or its counsel, does so for the purpose of preparing its case for trial and does not go beyond the necessities of such preparation to pry into matters of union mem- bership, to discuss the nature or extent•of union activity, to dissuade employees from joining or remaining members of a union, or otherwise to interfere with the statutory right to self-organization.3 We think this principle is applicable to the situation before us. Although no complaint had yet been issued by the Board, the Union had filed a charge alleging that Lee had been discharged because of her union activities and had inquired of counsel for the respondent as to the pos- 2 Matter of May Department Stores Company, a corporation doing business as 'Famous- Barr Company, 59 N. L It. B 976. - 2 Matter of N. & 1V Overall Company, Incorporated, 51 N. L It. B. 1016. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sibilify of her reinstatement. Counsel in turn requested McCarthy, superintendent of personnel, to consider the matter, and McCarthy decided to have an investigation made of the whole case. The ques- tions asked of the employees by Nolan and Davis at the, direction of McCarthy were limited to Lee's activities and conduct, and we are of the opinion that the information requested was relevant to the ques- tion whether the respondent should accede to the Union's request for reinstatement, and the preparation of the respondent's defense to the Union's charge of discrimination if the determination was that she should not be reinstated. We accordingly find under all the circum- stances that the questioning of the employees did not constitute inter- ference, restraint, and coercion, within the nleaning of Section 8 (1) of the Act. 4. The record shows, as the Trial Examiner has found, that shortly after Lee's discharge, employee Davis, acting as supervisor in the absence of Winfield, informed the elevator employees that someone might ask them questions, either at the store or at their homes, advised them that they were not obliged to answer, and suggested that they could say that they wanted to investigate or see their lawyer before answering. Davis did not tell them by whorl they might be questioned, or on what subject. She did not expressly forbid their answering questions, at least outside of working hours,, nor did she threaten or imply that the respondent would retaliate if they should do so. While we do not condone conduct on the part of an employer directed toward blocking an investigation of unfair labor practices, we do not, under the circumstances, find that Davis' conduct was violative of Section 8 (1)- of the Act. The Trial Examiner's finding to the contrary is accordingly reversed. 5. Having found that the respondent has engaged in certain un- fair labor practices affecting commerce, we shall order it to cease and desist therefrom and to take the affirmative action recommended by the Trial Examiner, which we find will effectuate the policies of the Act. Since there is already outstanding against the respondent a de- cree enjoining the respondent, among other things, to cease anad desist from in any manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; we do not believe it necessary, in order to effectuate the policies of' the Act, to include the, same provision in this Order 6 'Davis testified that she warned the employees not to answer quethons at the store because of a rule against their carrying on unnecessary con'ereations in the elevators We do not regard such a rule as unreasonable or unduly i estrictiN e of the statutory rights of the employees. 6 N L. R B v. May Department Stores Co , 154 F (2d) 52.t (C C A 8), enf'g as mod. 59 N. L. R. B. 849 11 Matter of Alabama Fuel eC Iron Company, 62 N L R B 762. Matter of The Wallace Conlporation, 68 N. L. R. B. 285. - MAY DEPARTMENT STORES COMPANY ORDER, 97 Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , May Department Stores Company, a corporation d/b/a Famous-Barr Company, St. Louis, Missouri, and its officers, agents, successors , and assigns shall: 1. Cease and desist from : (a) Interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist Elevator Operators and Starters , Local 50E, affiliated with Building Service Employees International Union, AFL, or any other labor organization , to bargain collectively through representa- tives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or, protection, as guaranteed in Section 7 of the Act, by making anti-union state- ments to its employees or threatening them with discharge for union activities. (b) Discouraging membership in Elevator Operators and Starters, Local 50E, affiliated with Building Service Employees International Union, AFL, or any other labor organization , by discharging or re- fusing to reinstate any of its employees or in any other manner dis- criminating in regard to their hire or tenure of employment, or any term or condition of their employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Marie Lee immediate and full reinstatement to her former or a substantially equivalent position , without prejudice to her seniority and other rights and privileges; (b) Make whole Marie Lee for any loss of pay she may have suf- fered by reason of the respondent's discrimination against her, by payment to her of a sum of money equal to the amount which she would, normally have earned as wages from July 7, 1945 , the date of the respondent's discrimination against her, to the date of the respondent's offer of reinstatement , less her net earnings during said period; (c) Post at its store at St. Louis, Missouri , copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the respondent' s representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional -Director for the .Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) of -the Act by questioning its employees concerning the activities, of employees on behalf of the Union, by ar- c anging dinners for its employees for the purpose of making anti- union speeches and discouraging union activity and, membership, and by engaging in surveillance of its employees for the purpose of ascer- taining and discouraging their union activity, be, and it hereby is; dismissed. - CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Elevator Operators and Startersi Local 50E, affiliated with Building Service' Employees Interna- tional Union, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, by making anti-union statements to our employees or threatening them with discharge for union activities. _ WE WILL OFFER to the employee named below immediate and full reinstatement to her former or a substantially equivalent position without prejudice to any senority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination. Marie Lee All our employees are free. to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or -any terns MAY DEPARTMENT STORES COMPANY 99 or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. MAY DEPARTMENT STORES COMPANY, A CORPORATION , d/bi/a FAMOUS- BARR COMPANY, By------------------ --------=------ Dated----------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr'. Harry G. Carlson, for the Board. Mr. Daniel D. Carinell, by Mr. Lester Asher, of Chicago , Ill., and Messrs. Tina Dwyer, Gerald J. Lucas, and J. T. Latham, of St Louis, Mo, for the Union. Messrs. Milton H. Tucker and Robert T. Burch, of St Louis, Mo., for the respondent. STATEMENT OF THE CASE Upon a first amended charge duly filed by Elevator Operators and Starters, Local 50E, affiliated with Building Service Employees International Union, American Federation of Labor, herein called the Union, the National Labor Re- lations Board, herein called the Board, by its Regional Director for the Four- teenth Region (St Louis, Missouri), issued its complaint dated November 27, 1945, against May Department Stores Company, a corporation doing business as Famous-Barr Company, St Louis, Missouri, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of'hearnig thereon, were duly served upon the respondent and the Union With, respect to the unfair labor practices, the complaint alleges in substance that the respondent, by its officers, agents and employees, from on or about May 23, 1945; to the date of the complaint, urged, persuaded, and warned its employees against joining, assisting, or remaining in the Union or any other labor organization; questioned its employees concerning the activities of employ- ees on behalf of the Union ; arranged dinners for its employees for the purpose of making anti-union speeches and discouraging union activity and membership; engaged in surveillance of its employees for the purpose of ascertaining and discouraging their union activity ; and discharged Marie Lee and refused to reinstate her because of her union activities. The answer of the respondent,' dated December 7, 1945, admits certain jurisdictional allegations contained in the complaint, admits the discharge of Marie Lee, and the respondent's refusal to reinstate her; but denies the commission of the unfair labor practices alleged in the complaint. Prior to the hearing, the respondent filed a motion to make the complaint more definite and certain or, in the alternative, for a bill of particulars. This motion was referred to a Trial Examiner who granted the motion in part by directing that counsel for the Board furnish the respondent with a bill of particulars con- cerning certain allegations in, the complaint. The motion was in other respects denied. Prior to the hearing, counsel for the Board furnished the respondent 712344=47-vol. 70-8 100 DECISIONS OF NATTONAL LABOR. RELATIONS BOARD with a bill of particulars as directed At the opening 'of the hearing counsel for the respondent excepted to the ruling of the Trial Examiner insofar as the complete relief requested in the aforesaid motion was denied. Pursuant to notice, a hearing was held at St. Louis, Missouri, on January 7, 8, and 9, 1945, before the undersigned, Sidney L Feiler, the Trial Examiner desig- nated by the Chief Trial Examiner. The respondent and the Board were repre- sented by counsel ; the Union, by counsel and representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case, the respondent moved to dismiss the proceedings. The motion was denied. This -motion was renewed after the presentation of all the evidence. Decision was reserved thereon. The motion is hereby denied. Counsel for the Board moved to conform the pleadings to the proof as to formal matters: This motion, which was joined in by counsel for the respondent, was granted All parties waived -oral argument. Briefs were received on behiilf of the Board and the-respondent. Upon the entire record in the case, and from his observation of the witnesses. the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation owning and operating department stores in several States. In St. Louis, DIissoiul, the respondent does business under the trade name and style of Famous-Barr Company. At its store in St. Louis, hereinafter referred to as the store, the respondent is engaged in purchasing, receiving, selling, and distributing a general line of department store merchandise During the year 1945, a representative period, the respondent purchased and transported for use at the store merchandise valued in excess of $25,000,000, of which approximately 70 percent was purchased and transported to the store from points outside the State of Missouri During the same period, the respondent sold at the store goods and merchandise valued in -excess of $251,000,000, of which approximately 12 percent was transported from St. Louis to points outside the State of Missouri. The respondent does not contest the jurisdiction of the Board and the under- signed finds that it is engaged in commerce within the meaning of the Act. 11 THE ORGANIZATION INVOLVED Elevator Operators and Starters, Local 50E, affiliated with Building Service .Employees International Union, American Federation of Labor, is a labor or- ganization admitting to membership employees of the respondent. Ill THE UNFAIR LABOR PRACTICES A. Acts of interference, restraint, and coercion 1. Background - In 1943, the Union -started an organizational drive among the elevator service employees at the store. Efforts were also being made to organize other store -employees. On January 1, 1944, the Board ordered elections in units found .,appropriate including a separate unit for elevator service employees.' In the elections, which were held on Januitiry 2S, 1944, a majority of the employees 1 54 N.L It _B 230 MAY DEPARTMENT STORES COMPANY 101 in the elevator service unit voted against representation by the Union or another participating union. On March 31, 1945, the Board set aside the elections and directed that new elections be held 2 On May 21 and 22, 1945, a second election was conducted among the elevator service employees The results of this elec- tion were not conclusive' and the Board, on July 11, 1945, directed that a third election be held to determine whether the elevator employees wished to be rep- resented by either of the labor organizations on the ballot in the prior election.4 This election had not been conducted at the time of the hearing herein. At all times here relevant, Marie Lee, whose discharge constitutes the basis of one of the Board's contentions herein, was employed by the respondent as an elevator operator. As appears in more detail hereinafter, she took a leading and open part in the.Union's campaign and served as an observer for it in both elections The matters discussed in this section of the report are related, for the most part, to her activities or to her discharge. 2. Statements of Supervisor Winfield Marie Lee testified concerning several occasions on which Myrtle Frazier Win- field, supervisor of the elevator service unit, discussed union activities or unions ° Approximately a month and a half before the election in January 1944, Mrs. Winfield told her, Mrs. Lee testified, that she was "going to keep on fooling around" with the Union until she would be fired. Mrs. Winfield at first testi- fied that she did not remember making the statement. She then made a com- plete denial. As noted above, the second election for the elevator service group was held on May 21 and 22, 1945 Mrs. Lee testified that shortly after the election and before May 25, Mis Winfield told the employees at an assenmbly ° of a speech she had heard by a person who had attended the San Francisco Conference of the United Nations. Mrs Lee's testimony as to Mrs. Winlicld's talk is as follows: Well, she (Mrs Winfield) said that she had been to a meeting that night, I don't just recall where it was, but at this meeting was a colored fellow front the Peace Conference in San Francisco and he was making a speech and he was talking about how ea„y our people are to be led the wrong way, and said that what we ought to do is to get a good grip on ourselves and II N to think befoie we leap because usually with our people it is the wrong ww ay we leap instead of the right way. He said we could be so easily led, '61 N L It B 258 The Tally of Ballots nas as follows Approximate number of eligible voters_____________________________ 63 Valid votes counted---------------------- ------------ ----------- 55 Votes cast for A F L [the Union hereinl _________________________ 15 Votes cast for C I 0------------------------------------------- 15 Votes cast against participating unions____________ _______________ 25 Challenged ballots----------------------------------------------- 0 Void ballots ------------------------------------------- 2 On June 23, 1945, the Regional Director issued an Election Report recommending- that another election be held The respondent filed exceptions to this report on June 26, 1945. + 62 N L R B 1256. S Mrs Winfield was not mimed in the Bill of Particulars furnished by the Board as engaging rn any unlawful activity other than surveillance Howevei, in view of the fact that the issue as to whether she made statements at various times was fully litigated, the undersigned has considered such testimony for all purposes here relevant °'I'he regular shift for elevator starters and operators began at 8 30 a in It was the practice for these employees to assemble at 8 20 a in at a rest room on the thirteenth floor for inspection by the supervisor and for special instructions and assignments 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and she said that he also said that Unions wasn't for colored people, that they did not do colored people any good at all and we should let them alone.' Mrs. Winfield testified thlit she had heard the speech referred to and had told the employees of it. She denied that the speaker had made anti-union remarks and that she had told the employees anything other than the speaker was a very interesting man and that she wished that all the employees had heard him. Another exchange between Mrs Winfield and Mrs. Lee took place on May 25. Mrs. Lee had taken her elevator to the ninth floor, stopped operations, and proceeded to try on some discarded gloves for the purpose of trying to find gloves which she-could use in operating her elevator car. At this point, Mrs. Winfield came over and spoke to her. While Mrs. Lee and Mrs. Winfield were in agreement as. to the occurrence of the incident up to the point described, they were in sharp disagreement as to what took place thereafter Mrs. Lee''s version, of what occurred was that Mrs. Winfield asked her what she was doing and told her-that it was against the rules to take a car out of service. Mrs. Lee replied that she was trying on discarded gloves which a store employee had given her and that.she had received permission to do this from her starter, Inez Dabney. Mrs. Winfield then said, "Since you are up here there is something I want to talk over with you " She then told Mrs. Lee that she was the only one keeping her in the employ of the store, that she "knew enough" to have her discharged, that the Company could not pay her enough to sell out her ow•i people. and that .lie thought Al •s. L,-,, was more intelligent than that." Mrs. Winfield said that since the election she had been having trouble with another operator, Alma Jolmson,9 that Mrs. Lee had better tell Mrs Johnson that Mrs Winfield was in charge and not Mrs. Lee. When Mrs. Lee asked Mrs Winfield for specific information as to any wrong- doing of which she might be guilty the latter refused to give her any further information. Supervisor Winfield testified that she came tip from the ground floor to the ninth floor on the day in question on noticing that the dial indicator showed that Mrs. Lee's car had remained on the ninth floor more than sufficient time to discharge passengers. She further testified that she reprimanded Mrs. Lee for not operating her car and warned her that she might be discharged for this and other infractions of the rules unless she was careful . She denied making state- ments attributed to her by Mrs. Lee. However, she could not remember saying that she "had enough" on Mrs: Lee to have her fired or something similar to that. Although Mrs. Winfield testified that Mrs. Lee on this occasion was insolent and talked in a loud voice she could not recall what Mrs. Lee said, nor could she remember whether Mrs. Lee told her that she had permission to try on the gloves. Mrs. Winfield's testimony as to the incident 'described above was vague and incomplete. She could not recall important details. On the other hand, the undersigned was impressed with the completeness of Mrs Lee's testimony,, especially her testimony concerning the fact that she had obtained permission to try on the gloves and had told this to Mrs. Winfield. Mrs Lee's starter, Inez Dabney, with whom this testimony could have been easily checked, was not called as a witness nor was her failure to testify explained. This starter would ap- parently have as much interest in the operations of the cars under her control I All employees in the elevator service unit were colored 'Mrs. Lee testified at first that Mrs Winfield specifically mentioned her canon activities in this connection . She later testified that Mrs Winfield had not actually used the words , "unions" or "union activities ," but that she nndeistood that Mrs Winfield was referring to her union activities and that she did mention the Union in spehknig of employee Alma Johnson. D Mrs. Johnson had acted as co -observer with Mrs Lee on behalf of the Union. MAY DEPARTMENT STORES COMPANY 103 is Mrs. Winfield. Yet there was no evidence that she had complained of any misconduct on the part of Mrs. Lee. The undersigned credits the testimony of Mrs. Lee concerning the statements of Supervisor Winfield on this occasion, and finds that Mrs. Lee's conclusion that Mrs. Winfield 's remarks were directed to her union activities was a reasonable one. The undersigned further credits Mrs. Lee's testimony as to the other remarks by Mrs. Winfield and finds that Mrs. Winfield threatened Mrs. Lee with discharge for union activities and made anti- union statements to Mrs. Lee and also to the employees at the assembly 1° 3. Surveillance of Marie Lee Marie Lee took a vacation in June 1945. On June 26, while on vacation, she visited the store to do shopping .11 Mrs. Lee arrived at the store at approximately 1: 30 p. in. She spoke briefly with Lucille Nolan , an elevator starter who was on duty. She then visited several departments in the basement , a department on the seventh floor, and a department on the eighth floor. Mrs. Lee testified that Mrs. Nolan followed her to each of those departments and while apparently look- ing at merchandise kept Mrs. Lee under observation. Mrs. Lee also testified that at the last department she visited , the Record Department, Mrs. Nolan spoke with her and secured her assistance in selecting some records . When the purchase had been completed , it was approximately 5 p. in., the store closing time. Mrs. _Nolan accompanied Mrs. Lee to the ground floor store exit. Mrs Nolan testified at the hearing, but gave no testimony concerning the events of that afternoon . The testimony of Mrs. Lee contains convincing details and the undersigned credits her testimony and finds that Lucille Nolan kept Marie Lee under surveillance on June 26 , 1945, for approximately 31/2 hours. The undersigned further finds that in view of Mrs . Nolan's length of absence from a key post, the respondent knew of and acquiesced in her activities ." Mrs. Lee's activities differed from those of the other employees only in her leadership in the drive of the Union to organize the elevator employees . That Mrs. Nolan was not in sympathy with those efforts is evident from the fact that, as appears more fully hereinafter, site precipitated Mrs. Lee 's discharge by complaining 1 week later to Griffin McCarthy, Superintendent of Employment, that Mrs. Lee was bothering employees to join the Union . The undersigned concludes and finds that Mrs . Lee was kept under surveillance because of ' her union member- ship aild activities. On June 27, Mrs. Lee, accompanied by her husband , revisited the store to do shopping. They entered the store at approximately 1 p. in. and left at approxi- - utately .4:30 p. in. Mr. Lee went to the basement while Mrs. Lee went to the Accommodation Desk on the main floor to purchase a shopping bag. She noticed that a starter, Odessa Meaders, on seeing her , spoke to Supervisor Winfield. The latter then walked over to Mrs. Lee and asked her what she was doing and Mrs. Lee told her the purpose of her visit. Mrs. Lee made a purchase on the main floor. Mrs Nolan walked up to her and spoke with her and then accom- 10 As -to the incident at the assembly, Mrs . Lee gave contradictory testimony as to whether she later discussed Mrs Winfield 's remarks with other employees . However, the undersigned concludes that inconsistencies in her testimony were due primaiily to her failure to understand certain questions. The undersigned from a study of Mrs. Lee's- testimony concludes that it was truthful and consistent with the factual background herein and her testimony has therefore been credited. 11 The findings in this section are based primarily on the testimony of Mrs Lee. 11 Elevator employees had a twenty -five minute afternoon rest period . They could also obtain special leave for shopping However , there was no testimony that Mrs Nolan had received any special leave nor would it account for her being absent from work for an entire afternoon. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD panied Mrs Lee to the basement stating that she wished to speak to Mr Lee- After some conversation Mrs. Nolan left Alice Daniels, another elevator operator, then came up and spoke to Mr. Lee for a while and left . The Lees then went to the Bakery Department in the basement . While there, Mrs -Lee saw Odessa Meaders start to enter the basement through a door in the back of that department. When she saw Mrs. Lee, Miss Meaders turned back" From the basement, the Lees went to the main floor. Mrs Lee left her husband at the Jewelry Department to purchase a watchband and went to the executive offices on the eleventh floor. Thereafter , she rejoined her husband at the Jewelry Department . While there, -she noticed Miss Daniels approach and stand at an adjoining counter seemingly looking at merchandise . She also noticed that Supervisor Winfield, Willie Mae Davis, an employee who acted as super- visor in Mrs. Winfield's absence , Airs. Nolan , and operators Mason, Crowe and Jacobs, all congregated near an adjoining bank of elevators and engaged in conversation." - From the main floor, Mr. and Mrs. Lee went to the balcony to have a wrist- band adjusted to Mr. Lee's watch. Miss Daniels again came near them and kept them in view for approximately 15 minutes . The wrist-band proving to be unsuitable, Mrs. Lee returned to `the main floor , purchased another band, and returned to the balcony." Miss Daniels left soon thereafter . Ruby Robin- son, anther elevator operator , then walked up and stayed near Mrs. Lee. Mrs. Lee met several other elevator service employees during the remainder of the afternoon , but these meetings were brief except for one instance when Miss Daniels again stayed near her while Mrs. Lee was shopping . It was then approximately 4:30 p. m. The Lees left the store, but returned in a few minutes. Mrs. Lee then noticed Mrs . Davis, Miss Meaders, Miss Daniels, and Miss Mason in conversation. Mrs. Davis denied that she had ever followed Mrs. Lee. Mrs. Winfield also, denied following Mrs. Lee, ordering employees to do this , or seeing theni keep her under observation . None of the other employees named by Mrs. Lee testified concerning the occurrences on June 27 . Mrs Lee's testimony, as corroborated in part by elevator operator Emma Taylor , is credited. The under- signed finds that Mrs. Lee was kept under surveillance by employees during her visit to the store on June 27. While it was theoretically possible for the various employees involved to arrange shopping leaves and possible rest periods to allow them to carry on their activities outside of working time , the undersigned concludes from the evidence herein including the events of the preceding day that the - surveillance of Mrs. -Lee- was' carried on with ,the -kiiowledge and assist- ance of management , and because of her union activities. "There is a conflict in the testimony of Mrs Lee and Mrs . Willie Davis , another employee , as to whether this door could be seen from the Bakery Department . The under- signed concludes that the evidence is insufficient to sustain a finding that the meeting between Mrs Lee and Miss Meaders at that time, even if it did occur , was due to any surveillance on the part of Miss Meaders 1' Mrs. Lee testified that she knew of no contingency which would require such a meet- ing and also that two of those present were relief operators who would normally be operating cars This testimony i:. credit-,Q. 'Emma Ta\lor, another operator . test'frd that she noticed surveillance of Mrs Lee in the Jewelry Department . While she testa. fled that this incident took place after Mrs. Lee's discharge , her testimony indicates that she was referring to the incident under consideration. 15 Mrs Lee also testified that operator Mason watched her during one of her trips to the Jewelry Department Her testimony does not indicate during which one of her several trips to that department this incident occurred. MAY DEPARTMENT STORES COMPANY 105 4 The questioning of employees 18 Marie Lee was discharged on July 7, 1945, by Superintendent of Employment Griffin McCarthy Several days thereafter, counsel for the respondent suggested that he reconsider the'dischaige, stating that a'representative of the Union had inquired whether Mrs. Lee could be reinstated. McCarthy then conferred with Lucille Nolan, the starter who had given him the first complaint of Mrs. Lee's activities. They composed six questions to be asked all employees in the elevator operations service.'' These questions were : Q. 1. Did Marie ever tell you that the Company wanted the girls to join- the AFL? Q. 2. Did Marie ever brag to you that she was being paid by the AFL? Q 3. Did you ever hear Marie make disrespectful remarks about Miss. Frazier? [Winfield] Q. 4. Did Marie ever suggest to you that you personally didn't need to pay any attention to Miss Frazier's orders or reprimands? Q. 5. Did you ever hear Marie make such a suggestion as described in the preceding question to any other girl in your hearing? Q. 6. Did you ever hear or see Marie butt into a business conversation between any supervisor, including starters, and some other elevator opera-- tors? McCarthy delegated Mrs. Nolan and Mrs. Davis,"' to conduct the questioning. These two employees conducted the questioning in the executive offices of the store on the eleventh floor. They asked each employee the listed questions and, jotted down their answers in accordance with the written instruction : Ask the following questions of every girl on the passenger elevator service- and make a note of each girl's answer to each question. The record does not indicate that any list was kept of the employees interviewed nor which questioner interviewed specific employees. However, it is undisputed that efforts were made to interview all employees and that this aim was substan- tially achieved The record is barren of any testimony that employees were told the purpose of their being questioned or that they were given an opportunity to decline to. answer the questions. The testimony of McCarthy, Mrs. Nolan, and Mrs. Davis indicates and the undersigned finds that the procedure followed was that em- ployees were summoned from their work, sent to the executive offices, questioned„ and sent back to: their stations with no explanation of its purpose other than that which they might deduce from the tenor of the questions. The Board maintains that the respondent's conduct constituted an unlawful inquiry into union activities. While employees were not informed of the purpose of the ques- tioning, the questions all related to the activities of Marie Lee who had been discharged only a few days previously and of whose discharge it can be assumed "The recital of the circumstances attending the questioning of employees ' is based primarily on the testimony of McCarthy. 17 The original charge herein was filed on July 9. The questioning took place between July 10 and 12. "Mrs Davis had the pay -roll title of either elevator operator or starter . She testified that her duties consisted of relief work or filling in for absent employees plus special as- signments from Supervisor Winfield such as sending uniforms to be cleaned. In the absence of Mrs Winfield , Mrs Davis admittedly took her place and acted as supervisor. It is undenied•,that Mrs . Davis voted in the election-in -May 1945 -as-a rank and file ' member of the elevator operation service. The undersigned concludes from the evidence that MIS. Davis was a non-supervisory employee except during those periods when she was actually designated as supervisor to substitute for Mrs. Winfield. 106 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the employees in this relatively small unit of 50'to 60 had knowledge. The tenor of the questions indicated quite clearly that the respondent sought infor- mation on acts of Marie Lee which it apparently considered improper. The respondent contended that its sole purpose in questioning its employees was to gather information to enable it to decide whether Marie Lee should be reinstated. In deciding the legality of- the respondent's acts, consideration must be given not only to its intent but also to the natural and probable effect of such actions upon the employees .1D The vice inherent in the questions asked is that they go too far. Even though it be assumed that the respondent intended to restrict the scope of its questions to the activities of Marie Lee during working time, the questions are not so limited. In fact, except for the last question , they are reasonably susceptible of exactly the opposite construction . This is particularly true of the first two questions : Did Marie ever tell you that the Company wanted the girls to join the AFL? Did Marie ever brag to you that she was being paid by the AFL? [Italics added:] The natural and probable effect of such questions would be to indicate that the respondent frowned upon such statements wherever made, that it presumably felt itself free to question employees concerning the union activities of its em- ployees whether or not on working time, and was prepared to take disciplinary action for such activities . Such conduct undoubtedly had a deterrent effect on the eagerness of employees to engage in those activities on their own time and was an unlawful invasion of their freedom to engage in union activities on their own time. McCarthy testified that lie instructed Mrs. Nolan and Mrs. Davis to ask only the six questions set forth above, but there is evidence that the questioners went further. Lillian Harris, an elevator operator, testified that she was questioned by Mrs. Nolan , that Mrs. Nolan had asked her whether Mrs. Lee had asked her to join the Union and whether she was in favor of the Union. Mrs. Nolan also remarked , Miss Harris said, that the operators did not need a union to work-for the respondent . Miss Harris testified that Mrs. Nolan did not indicate to which of the two unions competing for the operators' support she referred. However, in view of Marie Lee's known affiliation with the Union the undersigned con- cludes that Mrs. Nolan was referring to the Union and that her remarks were so understood by Miss Harris. Margaret Warren, an elevator operator, testified that she also was questioned by Mrs. Nolan . She testified that she was asked whether Mrs. Lee had spoken to her during store hours about the Union and that she had replied in the negative. Elevator operator Bernice Smith testified that she was interviewed by Mrs. Nolan who asked her whether Marie Lee had asked- her to join the Union and that she had replied that Mrs. Lee had done so but not at the store. Mrs. Smith also testified that Mrs. Nolan had mentioned to her what she considered advan- tageous working conditions at the store. Mrs. Nolan gave no testimony concerning her questioning of Lillian Harris, Margaret Warren, and Bernice Smith. She could not remember the questions that she had asked and could not remember whether she asked the questions to which these witnesses later testified . The undersigned was not impressed by her testimony. It was often vague and incomplete. The undersigned credits the testimony of the three witnesses aforementioned and finds that Mrs. Nolan 'IN. L. R B v Thompson Prothtcts, htc, 130 F. (2d) 363 , 368 (C C A 6). 1 MAY DEPARTMENT STORES COMPANY 107 did depart from the six prescribed questions to probe into other matters, especially union solicitation by Mrs. Lee, and to make anti-union remarks. Her- inquiry as to union solicitation was not confined to activity during working time and it is apparent from the testimony of two of the witnesses that it was not. understood to have this restricted meaning. While McCarthy testified that Mrs. Nolan had limited authority this was not' brought home to the employees. The questioners acted with apparent authority from management to pursue their inquiries and the undersigned finds that under the circumstances the respondent is responsible for their conduct during the- question period. The undersigned finds that Mrs. Nolan used the question period to unlawfully inquire into the activity of Mrs. Lee and to make anti-union remarks- and concludes that the respondent is responsible for her conduct. The effect of her- conduct was to emphasize to the employees that the respondent felt at liberty- to inquire into their union activities whether or not on working time. This was a clear deterrent and impediment to self-organization by the employees?° 5. The announcement by Mrs. Davis to the employees Zi Shortly after Mrs. Lee's discharge, Mrs. Davis, acting as supervisor of -the- elevator service employees, addressed them concerning their being questioned by strangers. She told them that they were not obligated to answer any ques- tions by anyone whether he had a badge or did not have a badge, or whether he was ,an ordinary customer or whoever he was. She also stated that there was- a store rule prohibiting operators from carrying on unnecessary conversation in the elevator. She further -informed the employees that they might be visited" at their homes and questioned, that they did not have to answer those questions, that they could say that they wanted to investigate further, or that they wanted- to see their lawyer. Mrs. Davis testified that the announcement was her own idea, that she made it without consulting anyone else, and that she decided to make it because she had been informed by some of the employees-that they had been questioned about the discharge of Marie Lee. - Employees have the right under the Act to self-organization, to engage in union activities, to bargain collectively, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection free from employer interference, restraint, or coercion. The procedure for the protection and enforcement of the rights of employees is set forth in the Act. It includes the filing of charges of unfair labor practices, investigation of those charges, the holding of hearings, and further Board and Court proceedings. Interference with this protective process is violative of the Act since employees will not feel free to exercise their rights under the Act unless they have assurance that they will receive full redress for any violation of their rights. In the instant case, Mrs. Davis did not specifically mention to the employees: that they might be questioned concerning the discharge of Mrs. Lee. However, Mrs. Davis was moved to action by reports of employees that they had been ques- tioned concerning Mrs. Lee's discharge. She clearly had that situation in mind. She did not seek to confine her instructions and suggestions to the working time of employees, but also proceeded to advise them as to methods they could use to. avoid and evade questioning by Board agents or other persons interested in 20 The Bill of Particulars furnished by the Board names a Mrs . England as participating- In this activity. No testimony was introduced which would link Mrs. England to this activity except that her office was used by Mrs Davis n The findings in this section are based upon the testimony -of Mrs. Davis and-employees Alnia Johnson and Emma Taylor . Their testimony was in substantial agreement as to this. incident. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtaining information By ben activity, Mis Davis was attempting to interfere with an investigation of Mrs Lee's discharge . It is true that she did not forbid employees to give iuforination and some of them did give mformiton and testi- fied at the hearing However, intei'feience does not require direct orders to employees It can be caused by subtle hints and suggestions 22 Mrs Davis was acting in a supervisory capacity at the time of tine announcement and uttered it before a formal assembly of the elevator service staff . The undersigned finds that the respondent was responsible for her conduct and concludes that, by the announcement by Mrs Davis as afore-mentioned , the respondent interfered with the rights of its employees The undersigned concludes that by the aforesaid activities of Supervisor Win- field, the surveillance of Mrs Lee, the questioning of its employees, mid the announcement by Mrs Davis , the respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act I - B. Acts of alleged interference, restraint, and coercion; the war bond dinners Dinners for the elevator, service staff were held.in June 1945. Lucille Nolan, at the request of Supervisor Winfield, made the arrangements for the dinners. She selected the restaurant and, since-all the employees could not be accommo- dated at one time, arranged for four dinners on different dates All expenses were paid by the respondent. McCarthy testified that these dinners were part of a series of dinners held for all employees as part of a war bond campaign drive. Yet it is clear from the testimony that the elevator employees were not notified of the purpose of the dinners. Furthermore, there were no speeches at the dinners. It is evident that the employees treated these dinners as general get-togethers paid for by the respondent and no effort was made to, disabuse them of that belief. Three employees of other departments attended all the dinners; Mns. Florence Haley, Mr. Ralph Hirsch, and Mr. Clyde Pendleton Mrs. Nolan testified that she invited Mrs. Haley to the dinners at the request of some operators and - because of her popularity with the operators. Mrs. Nolan also testified that she did not invite Hirsch and Pendleton by name, but told Mrs. Haley that she might bring an escort. - The status of these guests as of the dates of the dinners is important in evaluating certain anti-union activities which took place at the dinners. Hirsch was a furniture salesman in the store and clearly a non-supervisory employee. He had acted as an observer for the respondent in the election conducted for the general employees of the store on May 21 and 22, 1045 Clyde Pendleton, ac- cording to McCarthy, was a non-selling head of stock. He worked with a group of'three to six employees opening packages and routing the contents to various departments. Mrs. Haley, McCarthy testified, was a selling head of stock. She was in charge of the Camera Department and had general supervision of the work of two other selling employees: She also sold merchandise and had the additional duty of checking the stock and ordering more merchandise when necessary. She was a "blue pencil" employee. That is, she was the only one in her group entitled to, approve C'. O. D. orders, Will-Call orders, Part-Pay charges, and Employees' Discounts.' McCarthy testified that all three employees were not considered supervisory employees and that they had no right to hire, discharge, or promote employees 22 Matter of Star and Crescent Boat Company, 18 N L. R B 479 Matter of dance Piece Dye Works, Inc , 38 N L. It. B. 690. - - MAY DEPARTMENT STORES COMPANY 109 or make effective recommendations concerning such action He further testi- fied that these employees were eligible to vote in the May 1945 election This testimony, which was not challenged , is credited and the undersigned finds that these employees were not supervisors 28 Although no speeches were made at the dinners there is testimony that the three guests made unions a special subject for discussion Mrs. Enema Taylor, an elevator operator , testified that at the dinner she attended Pendleton and Hirsch asked each of the employees present what they thought of "the union." No one present spoke in its favor 24 The procedure used in her case as in the' others, Mrs., Taylor testified , was that Pendleton spoke to her when her turn came and said, "The next young lady, you tell us what you think about i t." She then arose and gave her opinion. Lillian Harris, another elevator operator , testified that the same procedure was followed at the dinner she attended except that Hirsch called upon the em- ployees after 'first speaking against the Union. All those present , including em- ployee Willie Mae Davis spoke against unions or union affiliation and no one expressed a favorable opinion. -Elevator operator, Margaret Warren, who attended the same dinner as Lillian Harris, recalled that the Union was discussed but could not remember any further details. The testimony of witnesses Taylor, Harris, and Warren concerning the dis- cussion of the Union or unions at the dinners was not challenged in its essential' ,details. The undersigned concludes and finds that the three guests attended all the dinners with the purpose of eliciting information from all the employees attending indicating their opinions concerning this Union or the other union which had participated in the elections held for the elevator service employees, or Loth , If the respondent were responsible for the acts and conduct of Mrs. Haley, Hirsch, and Pendleton the undersigned would find that it had , by their conduct, - violated the Act However, the evidence falls short of linking the respondent to their activities The undersigned has found that Mrs. Haley , Hirsch, and Pendleton , were rank and file employees The dinners themselves were arranged by Lucille ' Nolan, a non-supervisory employee. No supervisor at- tended these droners While the evidence tends to raise a suspicion that man- agenlent knew or learned of the happenings at the dinners it is not sufficient to establish such connection . The undersigned concludes that the respondent is =n With respect to Mrs Haley and Pendleton, counsel for the Board called attention to a prior decision of the Board and the Intermediate Report attached thereto in a case involv- ing this respondent (59 N. I , R. B. 976 ). In that case , the Trial Examiner in his report stated that the respondent conceded that heads of stock were supervisory employees and also found that the right to carry blue pencils indicated that employees carrying them were supervisors (p. 997 fn. 10, p. 1030 fn 96). Counsel for the respondent strenuously urged that no such concession had been made - It is unnecessary, in the opinion of the, undersigned, to review those findings here The later representation pro- ceeding which dealt in detail with the status of employees and their inclusion or exclu- sion is determinative of the question of the status of these employees Their eligibility to vote clearly indicates that these employees were considered to be rank and file employees. "There is no clear testimony that the Union here involved was mentioned by name. The quizzing was directed to the subject of "a union " The undersigned finds that Hirsch and Pendleton were understood by the employees to be ieferiing to the Union herein or the other union seeking to enroll the elevator emplovees, or both Neither Mrs Lee nor Miss Johnson, both of whom had acted as observers for the Union in the May 1945 election, received invitations to the dinners. The exact dates of the dinners could not be fixed by the witnesses other than that they took place in June 1945 Mrs. Lee was on vacation from June 11 to July 2. In view of this fact and the further fact that invitations were passed along verbally the undersigned concludes that there is no proof that Mrs Lee or Miss Johnson were deliberately kept from the dinners 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not responsible for the union discussion which took place at the dinners in June -1945 C. The discriminatory discharge 1. The discharge of Marie Lee Marie Lee was employed as an elevator operator from 1929 unt il her dis- charge on July 7, 1945. Her work had apparently been satisfactory during those years for no testimony was introduced concerning any misconduct on her part until a relatively short period before her discharge. When the Union began its organizing campaign in 1943, Mrs. Lee took a very active part . She solicited members and succeeded in securing signed membership cards from approximately 30 to 40 employees out of a total of approximately 55 employees in the elevator operation service. - She was the only elevator employee to wear a union button. She continued to campaign on behalf of the Union thereafter. There was no testimony that any other employee was as active as Mrs. Lee and the undersigned concludes that she was the leader of the Union faction among the elevator employees . Her sympathies and activities admittedly came to the notice of management for she appeared in a representation proceed- ing before the Board as a witness on behalf of the Union , and acted as an observer for it in the elections of January 1944 and May 1945. Marie Lee was discharged on July 7, 1945. There was no substantial dis- agreement among the witnesses as to what took place at the time of her discharge. McCarthy summoned Mrs Lee to his office and told her that he was discharging her because she had been insubordinate, disobedient, and had violated store rules. He did not furnish Mrs. Lee with .information as to . the specific instances where she had been at fault nor did he question her concerning them. After inform- ing Mrs. Lee of the reasons for her discharge, McCarthy told Mrs. Lee to turn in her uniform and return for her salary check. Subsequently Mrs. Lee sent McCarthy a letter asking for a detailed statement of the reasons for her discharge . McCarthy replied stating in part, "You were discharged on the latter date [July 7, 1945] for insubordination , disobedience, and repeatedly violating store rules ." A subsequent letter by Mrs. Lee repeating her original request was not answered. 2. The respondent's contentions McCarthy testified that he decided to discharge Mrs. Lee because of reports which he received that she had engaged in union solicitation .during working hours and also adverse reports on her work from her supervisors. The first report he received concerning any wrongdoing by Marie Lee, McCarthy testified, was on July 3, 1945. On that day, he testified, starter Lucille Nolan informed him that some operators had complained to her that while on duty they had been solicited to join the Union by Mrs. Lee. McCarthy further testified that he interviewed four ,operators and received reports from them that Mrs. Lee had solicited them at their elevators or her elevator or in the store building. He also testified that "one or more" of the operators claimed to have been solicited under all the above circumstances. Mrs. Lee denied that she had solicited e.n- ployees during working tune 2° She admitted soliciting employees, but claimed to 20 Rule 9 of respondent's booklet, "This is the Famous Family," prohibited, "Solicitation for any purpose * * * without permission from the Superintendent." McCarthy testified that copies of this booklet were distributed to all employees. Mrs. Lee denied receiving a copy. However, it is clear from-her testimony that she, imderstood•that solicit- ing on working time was a violation of established rules. In view of her denial of such MAY DEPARTMENT STORES COMPANY 111 have carried on this activity in the locker room and during non-working time or off the store premises. The operators who were alleged to have complained of her activities during working hours did not testify nor was their failure to testify explained. The record is barren of any evidence that any starter observed Mrs. Lee engaging In solicitation. Operators were not allowed to ride in the regular passenger elevators, but were required to use special employee elevators. In view of these factors and the manifest difficulty for operators to engage in conversation while taking cars from floor to floor under the supervision of starters, the undersigned credits Mrs. Lee's denial of the charge of solicitation during working hours.27 Continuing his testimony, McCarthy stated that after his investigation he had "pretty much in mind" that he would suspend Mrs. Lee for violating the respond- ent's no-solicitation rule. He then spoke with Supervisor Winfield and received from her adverse reports concerning Mrs Lee's work and a recommendation that she be discharged. Mrs. Winfield testified concerning Mrs Lee's work and her report to McCarthy. She testified that she had reprimanded Mrs. Lee and cited three such instances. The first incident, she testified, occurred in May 1945. During a morning on an unspecified date Mrs. Winfield asserted that she observed Mrs. Lee on the third floor standing outside her car talking to other operators. Mrs. Winfield further testified that when she reprimanded Mrs. Lee for being outside of her car in violation of rules, the latter became indignant and replied in a loud voice. Mrs. Winfield could not recall what Mrs. Lee said. On a subsequent date, Mrs. Winfield testified, she found Mrs. Lee's car abandoned on the seventh floor with the door open and the lights and power on. Mrs Lee, she stated, was shopping. When she reprimanded Mrs. Lee for this the latter told her that she was "only shopping" and "talked back." Mrs. Win- field could not remember what Mrs. Lee said on this occasion. The final inci- dent related by Mrs. Winfield was the occasion previously related herein when Mrs. Winfield found Mrs. Lee on the ninth floor trying on gloves. (p. 103, srpra.) Mrs Winfield also testified that Mrs Lee on several occasions had remained away from woik without giving her prior notification.' The above matters were the only incidents Mrs Winfield testified that she reported to McCarthy She maintained, in addition, that she had had trouble with Mrs. Lee on other occasions. Except for one incident in July 1945, Mrs. Winfield could not specially recall any such incidents, their number, their fre- quenct, or over how long a period the.N extended Nor could she recall how many times Mrs Lee had failed to give advance notice that she would be absent Ali s Winfield also testified that it was not her custom to make formal reports on the work petformance of employees under her supervision. but that she (lid keel) her own notes of the wrongdoing by employees, but did not keep them per- nianently She could not produce any such recoids for Marie Lee. She also testi- fied that she had reported operators to the Personnel Office for being disrespectful, activity, the undersigned deems it unnecessary to resolve the question of her receipt of the respondent's booklet of pules The above rule is similar to other no-solicitation rules which have been held to be iiola- live of the Act as an infringement of the right of employees to engage in union activities on their free time on the premises of an employer In view of the fact that the validity of this rule was not litigated, no finding is made as to its validity. A rule of similar con- tent issued by the respondent has been held by the Board to be in violation of the Act. (59N L R.B'976,981) - sa Mrs. Davis testified that Mis Lee had asked her to join the Union in 1944 and that this conversation had taken place on an employee elevator. However, since Mis. Davis did not testify that she ieported this to McCarthy piior to the dischaige it could not have played a pait in his decision even if it did occur. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' insubordinate, or doing something they should not do. but there is no testimony that she had filed such it report for Airs Lee :e In fact, it may be inferred, and the undersigned finds, that no such report had been filed by Mrs Winfield since McCarthy testified that the first adverse report lie received from Airs Winfield concerning Airs. Lee's work was on July 3. Mrs. Lee denied that she had been reprimanded by Mrs. Winfield She denied that the incidents Dirs. Winfield had related concerning her leaving her car to talk to other operators or to go shopping had occurred She further maui- tained that she had always given prior notice of inability to report., She also denied that she had been insolent or insubordinate. The undersigned was not impressed by Supervisor Wrnfield's testimony. Her testimony was evasive, vague, incomplete, and lacking in detail. The testi- mony of Mrs. Lee concerning their encounter on the ninth floor (the glove inci- dent) has previously been credited. In addition, the testimony of Mrs. Win- field concerning Mrs. Lee leaving her elevator to go shopping is on its face highly improbable, especially. since as Mrs. Winfield testified, operators were allowed time for shopping in the discretion of the supervisor without definite limitation. The undersigned credits the testimony of Airs. Lee as to the incidents related above and finds that except for the glove incident they did not take place Whatever opinion Mrs Winfield had formed about Airs Lee's work she had not thought it worthy of a report to McCarthy This is in marked contrast to her practice in cases of serious derelictions by other employees m McCarthy also testified that he spoke' to Mrs. Davis on July li. the day beture the discharge, and received from her adverse reports concerning Mrs Lee. Mrs. Davis, corroborating McCarthy's testimony, stated that she told McCarthy of two instances. The first of these, she testified, was the so-called "Haley inci- dent." Mrs. Davis could not recall the date of this occurrence, but thought that it did happen sometime in 1945. On that occasion, Mrs Davis testified, she spoke to operator Corinne Haley in the'locker room and asked her to work overtime. Mrs. Lee broke into the conversation, according to Airs. Davis, and told Miss Haley that she did not have to- work overtime, that she, Lee, was giv- ing the store enough of her time and that no one "had better" ask her to work overtime. 'Mrs. Lee testified that she remembered the incident. but denied that she had advised Miss Haley that she need not work overtime or bad said that she herself would not do so. She stated that when Miss Haley had objected to taking the assignment she had merely told Miss Haley that she had put in a great deal of overtime in the past when the store schedule had-been different The second incident she related to McCarthy, Mrs. Davis testified, occurred on July 6, 1945, when Mrs. Lee, on being given a change of assignment, said to her,."I could kill you for that." Mrs. Lee denied making that, reniai'k Mai ie Lee testified that she had received overtime assignments during her 16 years of employment and had fulfilled them Her testimony on this point was not con- tradicted, nor was it shown that she had ever refused to take an assignment. In view of that factual situation and from his observation of these witnesses, the undersigned credits Mrs Lee's denial of insubordination at the "Haley incident," and further credits her denial of Mrs Davis' teatiiuonv concerning the incident of July 6, 1945. 28 Mrs Winfield did not have the power to discharge employees. Onlti McGuthy in(] one other top official could take such action 2 Mrs Lee testified that prior to her discharge she received changes in assignments to more onerous woik than,she had previously had While these is a conth in fici testimony and McCarthv's testimony as to` her work,assignnients. the undersigned concludes that there is no proof that the various assignments Mrs Lee received wort made othei than for the purpose of maintaining operations. MAY DEPARTMENT STORES COMPANY 3. Conclusions 113- McCarthy testified that he determined to discharge Mrs. Lee after he received Mrs. Nolan's report concerning Mrs Lee's alleged solicitation, investigated the report, received adverse reports on Mrs. Lee's work fiom Mrs. Winfield and Mrs. Davis, and talked to some rank and file employees. None of the employees who allegedly complained of being solicited by Mrs. Lee were offered as witnesses and the undersigned has credited Mrs Lee's denial of soliciting during working hours. ' As to the reports of Mrs. Winfield and Mrs. Davis, their specific charges had little foundation in fact. They did have adverse' opinions of Mrs. Lee's work, but it is clear that they had either created or magnified certain 'incidents to substantiate their subjective evaluations. Furthermore, the findings, here demonstrate that- Mrs. -Winfield had a strong anti-union' animus. 'Mrs. Davis also had indicated her disapproval of the Union at the dinners held in June 1945. The undersigned concludes that these adverse reports concerning Mrs. Lee's work were actuated by anti-union feeling.30 , Respondent urges that in any case the actual truth of the charges levelled against Mrs. Lee is not determinative of the issue herein, that the central issue is McCarthy's motives in making his decision to discharge Mrs. Lee. However, while this generalization is substantially correct,, the truth or falsity of the alleged bases for discharge as well as the good faith of the reporting super visors are all factors which must be considered in determining the motives for the discharge. The undersigned was impressed with McCarthy's willingness to accept a one- sided version of -the facts. He not only did not give Mrs. Lee an opportunity to confront her accusers, but he at no time gave Mrs. Lee information concern- ing the specific charges levelled against her nor did he provide her with an opportunity to make any explanation of her alleged acts of wrongdoing.' While McCarthy, according to his own testimony, (lid some investigation prior to the discharge, his thorough investigation of the charges occurred after the discharge, and this investigation, he turned over to two of Mrs Lee's chief accusers, Mrs. Nolan and Mrs. Davis, in an effort to have an "impartial and fair investigation." Arbitrary action, the non-occuirence of certain alleged niisdeeds, and a failure to investigate both sides of a case, or at least afford an employee an oppor- tunity to defend herself, are all factors which tend to indicate that a chetermi- nation to discharge an employee was based on considerations other than merit 31 This, is especially 'true when an employee has given years of satisfactory service. Mrs Lee had been employed by the, respondent for 16 years. There was no testimony that her work had been unsatisfactory until a relatively short period before her discharge and subsequent to the time she engaged in union activity. 30 The undersigned has found that the respondent is only liable for the acts of Mrs Davis when she actually acted as a supervisor . In giving her report to McCarthy, Mrs. Davis was acting as a supervisory employee ; i. e., making effective ' recommendations, concerning the discharge of an employee. McCarthy, by his own testimony, relied on this report in dis- charging Mrs. Lee. The undersigned finds that the respondent is responsible for Mrs. Davis' anti-union animus in making her report. 31N. L. R. B v. Yale & Towne Mfg Co., 114 F. (2d) 376, 378 (C. C. A. 2 ) ; Shell Oil Co., Inc. v. N. L. R. B., 128 F. (2d) 206, 207 (C. C. A 5) , Matter of Illinois Tool Works, 61 N. L. R. B 1129, 1132 , Matter of May Depai tment Stores Company d/b/a Famous-Barr Company, 49 N. L R. B. 976, 982. In the last cited case the Board found that the re- spondent had discharged employees in violation of the Act and based ' the finding, in part, upon the fact that the respondent had not made efforts to obtain an accused employee's version of the misconduct with which he had been charged. Having had its attention specifically directed to the Board's position , the respondent's failure to obtain Marie Lee's defense herein is indicative of a discriminatory purpose. :114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -Assuming that Mrs. Winfield and Mrs. Davis had in fact furnished McCarthy -with the details of alleged misconduct to which they testified, it is reasonable .to suppose that McCarthy might have wondered why an old-time employee should have become a poor worker and why, if she had been guilty of all those misdeeds , he had not received any prior reports from Mrs. Winfield or Mrs ;Davis. Certainly these were matters which indicated the need for hearing both .sides. Instead, this approach was carefully avoided. The evidence herein impels the conclusion that when Mrs. Nolan, bypassing -her supervisor, relayed reports to McCarthy that 'Mrs. Lee was violating the no-solicitation rule, the former seized the opportunity to build up a case against :Mrs. Lee which was based on non-existent or highly exaggerated incidents, and discharged Mrs. Lee without permitting her to state her case. Much-of the evidence upon which McCarthy allegedly relied was not presented at the hearing in sufficient detail so that it could be evaluated. However, the questioning of the elevator operators after the discharge is indicative of an effort to bolster ,the case against Mrs. Lee or to uncover new evidence. The actions of manage- ment herein are indicative of an effort to rid itself of Mrs. Lee rather than do ;her justice in the circumstances. This treatment finds its explanation in the ,union activities of Mrs. Lee. There is no doubt that she was the leader of the ,union faction which had fought 'for a long time to organize the employees. .Respondent knew of her activities. In fact it urges such knowledge as a defense maintaining that since it knew of Mrs. Lee's activities since 1943 she would have been discharged much earlier if the respondent had wished to discharge .her for her union activities. It is not germane to the issues herein to ascertain when respondent would have deemed it best to rid itself of Mrs. Lee. At the time of her discharge there was ample reason to fear Mrs. Lee's union activities, ,especially in view of the fact that she was the most active organizer and worker .for the Union 32 The'undersigned finds that the respondent discharged Marie Lee .on the basis of prejudiced reports of supervisory employees and because of her ;union activities and by such conduct has discriminated in regard to her hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the sights guaranteed in Section 7 of the Act.33 - az The history of the elections for the elevator service employees shows that in, the January 1944 election less than a majority voted for a collective bargaining representative. In the May 1945 election the opposite occurred . The two union factions competing for the votes of the employees had secured more adherents . At the time of the discharge, -the Board had before it a recommendation from its Regional Director recommending a new election It was possible that there might be further gains by the unions. S3 The instant case is not the only proceeding wherein the respondent has been charged with - the commission of unfair labor practices . In 1943, the Board after a hearing found that the respondent had refused to bargain collectively with the repre- sentatives of a majority of its employees in 'an appropriate uhit in violation of Section , 8 (1) and ( 5) of the Act ( 53 N. L. R. B. 1366 ). The findings of the Board were upheld by the Courts ,(146 F 2d) 66 (C C A. 8); decree modified and affirmed 326 U. S. 376 ) In-1944, the Board after a hearing upon charges of unfair labor practices filed against the respondent found that the respondent had violated Section 8 ( 1) -and (3) of the Act; ( 59 N. L. R. B 976 ). Some of the acts of unfair labor practices found by the Board were employing undercover agents to report on the organizational activities of its em- ployees, engaging in surveillance of union activities, enforcing an illegal no-solicitation rule discriminatorily against union adherents, and discharging 10 employees because of their union membership and activities The Board noted in passing that McCarthy, who participated in the discharges , did not impress it as a trustworthy witness. An appeal' from the decision is now pending. - The Board, contends, In effect , that these piior cases constitute "a long proven back- ground of anti-union conduct" indicating a ' pattern of coercive conduct", which was ,carried further by the acts alleged in the,instant case (Brief of Board p 2-3). Respond- ent contends that in the case Involving its refusal to bargain the Supreme Court limited MAY DEPARTMENT STORES COMPANY 115 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has independently violated Section 8 (1) and (3 ) of the Act, it will be recommended that the respondent, pursuant to the mandate of Section 10 (c), cease and desist therefrom. The respondent, by its supervisory personnel , interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act by making anti-union re- marks; by threatening discharge for union activities; by keeping Marie Lee, a union leader, under surveillance ; by questioning elevator service employees con- cerning the activities of Mrs. Lee coupled with anti-union remarks ; and by the announcement by Mrs. Davis of ways employees could avoid answering questions and evade assisting in the investigation of the discharge of Mrs. Lee. The re- spondent also discriminatorily dischaiged Marie Lee and refused to reinstate her because of her union activities. Such discrimination "goes to the very heart of the Act."" As previously mentioned, the respondent in 1943 was found to have violated Section S (1) and (5) of the Act In 1944, the respondent was found to have violated Section 8 (1) and (3) of the Act. The totality of the respondent's conduct is indicative of "persistent efforts by varying methods to interfere with the right of self-organization" in circumstances which con- tain "the threat of continuing and varying efforts to attain the same end in the future." " Because of the respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices are per- suasively related to the other unfair labor practices prescribed and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the relief provisions in the decree granted on the basis that there was no clear determina- tion by the Board, that there was an attitude of opposition to the purposes of the Act by the respondent justifying a broad cease and desist order. As to the later case involving violations of Section 8 (1) and (3) of the Act, respondent maintains that in that case it was held that it had discriminated in favor of an A. F. of L union and against a C. I. 0. union whereas the Union involved herein is A. F. of L. affiliated. (Respondent's Reply Brief p. 1-2.) While the decisions in the above case might properly have been considered in the resolution of the issues herein (N. L. R B. v. American Laundry Machinery Company, 152 F. (2d) 400 (C. C. A. 2), enforcing 57 N. L. R. B. 25), the findings herein have not been based upon the prior decisions, but have been arrived at independently. It should be noted, however, that the findings in those cases especially the 1944 case involving violations of Section 8 (1) and (3) tend to corroborate the findings in the instant case, especially as to the credit to be given McCarthy's testimohy and the respondent's motives in taking certain action. The prior cases have been considered in determining the remedy to be prescribed herein. s' N. L. R. B. v. Entwistle Mfg. Co, 120 F. (2d) 532, 536 (C C. A. 4). See also, N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. (2d) 350, 353 (C. C. A. 7), where the Court observed . "No more effective form of intimidation nor one more violative of the N. L. R Act can be conceived than discharge of an employee because he joined a union . . . 93 N. L. R. B. v. Express Publishing Company, 312 U. S 426, 438. N L R. B v. Bradley Lumber Company of Arkansas, 128 F. (2d) 768, 771 (C C. A 8). 712344-47-vol. 70-9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the recommended order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial stilfe which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. It has been found that the respondent has, discriminated in regard to the hire and tenure of employment of Marie Lee. It will therefore be recommended that the respondent offer her immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges. It will be further recommended that the respondent make her whole for any loss of pay that she may have suffered by reason of the re- spondent's discrimination against her by payment to her of a sum of money equal to the amount she would have earned as wages from the date of the discrimina- tion against her to the date of the respondent's offer of reinstatement, less her net earnings se during said period. Upon the basis of the foregoing findings of fact and the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Elevator Operators and Starters, Local 50E, affiliated with the Building Service Employees International Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Marie Lee, thereby discouraging membership in the Union, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 .(3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section b (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5 The respondent's activities, with respect to the dinners held for its elevator employees in June 1945, do not constitute a violation of Section 8 (1) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, May Department Stores Company, a corporation d/b/a Famous-Barr Company, St. Louis, 'Missouri, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Elevator Operators and Starters, Local 50E, affiliated with the Building Service Employees International Union, AFL, or any other labor organization of its employees by laying off, discharging, or refusing to reinstate any of its employees and from refusing to employ any member of 38 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N L R B. 440 . Monies received for work performed upon Federal, State , county, municipal , or other work-relief projects shall be considered as earn- ings - See Republic Steel Corporation v N L R B , 311 U. S 7 MAY DEPARTMENT STORES COMPANY 117 that union or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) In any other maner interfering with, restraining, or coercing its em- ployees in the exercise of their rights to self-organization, to form labor organ- izations, to join or assist Elevator Operators and Starters, Local 50E, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act. (a) Offer to Marie Lee immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges ; (b) Make whole Marie Lee for any loss of pay she may have suffered by reason of respondent's discrimination against her by payment to her of a sum of money,equal to the amount she would normally have earned as wages from the date of the discrimination to the date of the respondent's offer of reinstate- ment, less her net earnings,' during said period ; (c) Post immediately at its store at St. Louis, Missouri, copies of the notice attached to the Intermediate Report herein, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Fourteenth'Region, after being duly signed by the respondent, shall be posted by the respondent im- mediately upon recipt thereof, and maintained by it for sixty (60) consecutive (lays thereafter, in conspicuous places, including all places where notices to employees aie customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director of the Fourteenth Region in writing within ten (10) days from the receipt of the Intermediate Report what steps the respond- ent has taken to comply herewith. It is further recommended that unless the respondent notifies said Regional Director in writing within ten (10) days from the receipt of this Intermediate Report that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. ° It is further recommended that the complaint, insofar as it alleges that the respondent violated the Act by its activities with respect to dinners held for its elevator service staff, be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such a statement of exceptions and/or brief, the party or counsel for the Board filing same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire per- 84 See footnote 36, supra. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mission to argue orally before the Board , request therefor must be made in writing to the Board within ten (10 ) days from the date of the order transfer- ring the case to the Board. SIDNEY L. FEiLEa, Trial Examiner. Dated February 13, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self -organization, to form labor organizations, to join or assist ELEVATOR OPERATORS AND STARTERS, LOCAL 50E. affiliated with the BUILDING SERVICE EMPLOYEES INTER- NATIONAL UNION, AFL , or any other labor organization , to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prej- udice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Marie Lee. All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. MAY DEPARTMENT STORES COMPANY, d/b/a FAMOUS -BARK COMPANY, Dated----------------------- By---------------------- (Representative ) ( Title) NOTE : Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. n